Citation NR: 9620730
Decision Date: 07/22/96 Archive Date: 08/02/96
DOCKET NO. 94-45 381 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Washington, DC
THE ISSUES
1. Entitlement to service connection for defective hearing
of the right ear.
2. Entitlement to an increased (compensable) rating for
defective hearing of the left ear.
ATTORNEY FOR THE BOARD
K. E. Harrison, Associate Counsel
INTRODUCTION
It appears the veteran had active duty for training from
November 1977 to March 1978 as well as several years of
reserve service. This matter comes before the
Board of Veterans’ (Board) on appeal from an April 1991
rating decision by the RO which denied the veteran’s claim of
service connection for defective hearing of the right ear and
which granted service connection for defective hearing of the
left ear, assigning a noncompensable rating.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has defective hearing of the
right ear due to infantry training during his period of
active duty for training. He also contends that his service-
connected defective hearing of the left ear warrants a
compensable rating.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s claim of service
connection for defective hearing of the right ear is denied
by operation of law. It is further the decision of the Board
that the preponderance of the evidence is against a
compensable rating for defective hearing of the left ear.
FINDINGS OF FACT
1. The veteran is not shown to have defective hearing of the
right ear for VA purposes.
2. The veteran’s bilateral hearing loss is manifested by
level I hearing acuity in the right ear and level IV in the
left.
CONCLUSIONS OF LAW
1. The veteran does not have defective hearing of the right
ear for which service connection can be granted. 38 U.S.C.A.
§§ 1110, 1131, 5107(a), 7104 (West 1991 & Supp. 1995);
38 C.F.R. §§ 3.303, 3.385 (1995).
2. The criteria for a compensable rating for defective
hearing of the left ear have not been met. 38 U.S.C.A.
§ 1155 (West 1991 & Supp. 1995); 38 C.F.R. § 4.85, Diagnostic
Code 6100 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
The veteran’s Form DD 214 reveals that he had active duty for
training from November 1977 to March 1978 and that his
primary specialty was rifleman.
The veteran’s October 1977 entrance examination for his
period of active duty for training reveals that the veteran
had bilateral hearing within normal limits. A March 1978
discharge examination revealed that the veteran had pure tone
thresholds of the right ear of 25, 15, 15, 15, and 10 at 500,
1000, 2000, 3000, and 4000 hertz, respectively. Pure tone
thresholds of the left ear were recorded as 55, 50, 35 and 40
at 500, 2000, 3000, and 4000 hertz, respectively.
Reserve medical records show that the veteran underwent
audiological testing between 1983 and 1989. A high
frequency hearing loss of the left ear was demonstrated.
Reserve medical records are negative for a diagnosis of
defective hearing of the right ear. Private audiological
reports (from Polyclinic Medical Center) from 1983-1990 show
that the veteran had normal hearing in the right ear except
for a mild loss at 250 hertz and that he had a severe to mild
hearing loss in the left ear.
An April 1990 audiological examination revealed pure tone
thresholds of 25, 10, 15, and 20 at 500, 1000, 2000 and 4000
hertz, respectively. Pure tone thresholds of the left ear
were recorded as 70, 60, 50, and 50 at 500, 1000, 2000, and
4000 hertz, respectively.
In December 1990, the veteran filed a claim for service
connection for bilateral defective hearing.
VA audiological examination in March 1991 revealed pure tone
thresholds of the right ear of 20, 10, 10, 10, and 25 at 500,
1000, 2000, 3000 and 4000 hertz, respectively. Pure tone
thresholds of the left ear were recorded as 60, 0, 45, 40,
and 55 at 500, 1000, 2000, 3000, and 4000 hertz,
respectively. Average pure tone thresholds at 1000 to 4000
hertz were 14 in the right ear and 35 in the left ear.
Speech recognition was reported as 100 percent in the right
ear and 68 percent in the left ear. The examiner reported
that the veteran had hearing within normal limits in the
right ear and that he had moderate sensorineural loss in the
left ear with a mild conductive component at 250 hertz.
The RO, in an April 1991 rating, granted service connection
for defective hearing of the left ear assigning a
noncompensable rating. The RO, however, denied service
connection for defective hearing of the left ear.
An April 1993 VA audiological examination revealed pure tone
thresholds of the right ear of 15, 5, 10, 10, and 15 at 500,
1000, 2000, 3000, and 4000 hertz, respectively. Pure tone
thresholds of the left ear were recorded as 65, 65, 45, 40,
and 50 at 500, 1000, 2000, 3000 and 4000 hertz, respectively.
Average pure tone thresholds were 10 in the right ear and 50
in the left ear. Speech recognition using the Maryland CNC
word list was 100 percent in the right ear and 80 percent in
the left ear.
II. Analysis
A. Service Connection For Defective Hearing of the Right Ear
The law provides that service connection may be granted for
disability which was incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110 (wartime), 1131
(peacetime) (West 1991 & Supp. 1995). The law governing the
grant of service connection for defective hearing is found in
38 C.F.R. § 3.385 which reads as follows:
For the purposes of applying the laws
administered by VA, impaired hearing will
be considered to be a disability when the
auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000
Hertz is 40 decibels or greater; or when
the auditory thresholds for at least
three of the frequencies 500, 1000, 2000,
3000 or 4000 Hertz are 26 decibels or
greater; or when speech recognition
scores using the Maryland CNC Test are
less than 94 percent.
The Board finds that service connection for defective hearing
of the right ear is not in accordance with these standards.
Although one report revealed that the veteran had a mild loss
at 250 hertz, this loss does not show impaired hearing for VA
purposes. Polyclinic Medical Center records otherwise
document normal right ear hearing. No audiometric test
results of record show that the veteran has defective hearing
of the right ear as defined by regulation. In the absence of
evidence of a current hearing disability satisfying the
requirements of 38 C.F.R. § 3.385, the claim must be denied
by operation of law. Sabonis v. Brown, 6 Vet.App. 426
(1994).
B. Increased (Compensable) Rating For Defective Hearing of
the Left Ear
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
in earning capacity a disability in question would cause. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes
identify the various disabilities.
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per
second. To evaluate the degree of disability from service-
connected defective hearing of the left ear, the revised
rating schedule establishes 11 auditory acuity levels
designated from level I for essentially normal acuity through
level XI for profound deafness. 38 C.F.R. 4.85, Codes 6100-
6110.
Test results from 1991 and 1993 VA audiometric examinations
correlate to auditory acuity level I in the right ear and
level IV in the left ear. This, in turn, translates to a
noncompensable rating. 38 C.F.R. § 4.85, Table VI, VII, Code
6100.
The assignment of a disability rating for hearing impairment
is derived from a mechanical application of the rating
schedule to the specific numeric designations assigned after
audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet.App. 345 (1992). In this case, the
application of the rating schedule to the test results
clearly demonstrates that no more than a noncompensable
rating is warranted.
The evidence is not approximately balanced; rather, the
preponderance of the evidence is against the claim. Thus,
the reasonable doubt doctrine does not apply. 38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). For the
foregoing reasons, an increased rating for defective hearing
of the left ear must be denied.
ORDER
Service connection for defective hearing of the right ear is
denied.
An increased (compensable) rating for defective hearing of
the left ear is denied.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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